This American
life of ours has long been pro-violence and anti-sex, unless the two can
be merged so that violence is the dominant theme. The U.S. Supreme
Court reaffirmed that historical record on Monday in declaring
California's ban on the sale of violent video games to minors
unconstitutional while continuing to deny constitutional protection to
purely prurient sexual material for either minors or adults.

The California law that the court struck down prohibited the sale or
rental of violent games to minors "in which the range of options
available to a player includes killing, maiming, dismembering, or
sexually assaulting an image of a human being," unless the work, taken
as a whole, possessed redeeming literary, artistic or social
value -- qualities that limit censorship of sexually "obscene" material.

The Supreme Court, in essence, said no -- "sexually assaulting an image
of a human being" is protected speech, but depicting graphic sexual
activity that is nonviolent and consensual is not.

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"California has tried to make violent-speech regulation look like
obscenity regulation by appending a saving clause required for the
latter," Justice Antonin Scalia wrote in the majority opinion. "That
does not suffice. Our cases have been clear that the obscenity exception
to the First Amendment does not cover whatever a legislature finds
shocking, but only depictions of 'sexual conduct.' "

As Scalia put the prevailing argument that says yes to violence and
no to sex, it is only violence that possesses deep cultural roots going
back to our favorite fairy tales. Arguing that "violence is not part of
the obscenity that the Constitution permits to be regulated," Scalia
made clear that the problem is with the sex and not the violent or
misogynist behavior that some critics argue will result from material
the court defines as obscene: "Because speech about violence is not
obscene, it is of no consequence that California's statute mimics the
New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child."

Scalia's opinion is actually quite thrilling in enunciating an
extremely broad definition of the free speech rights of minors. But it
is simply bizarre in dismissing the claimed harmful effects of violent
depictions while still insisting on the strictest puritanical view of
the dangers of sexual imagery. "No doubt a State possesses legitimate
power to protect children from harm, but that does not include a
free-floating power to restrict the ideas to which children may be
exposed," he said. Unless sex is involved, in which case, as Scalia
quotes an earlier court decision: "Speech that is neither obscene as to
youths nor subject to some other legitimate proscription cannot be
suppressed solely to protect the young from ideas or images that a
legislative body thinks unsuitable for them."

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In that regard, Scalia's view is a vast improvement over that of
Clarence Thomas, who held in his dissent that minors have no First
Amendment rights at all. But Scalia is unnerving in his dismissal of the
concurring opinion of Justice Samuel Alito Jr., in which Chief Justice
John Roberts joined. Alito argued that the California statute addressed
"a potentially serious social problem" but that "its terms are not
framed with the precision that the Constitution demands..."

Scalia's withering dismissal of Alito's concerns is revealing of his
tolerance for violent imagery as opposed to that which is merely sexual:
"Justice Alito has done considerable independent research to identify
video games in which 'the violence is astounding....Victims are
dismembered, decapitated, disemboweled, set on fire, and chopped into
little pieces....Blood gushes, splatters, and pools.' Justice Alito
recounts all these disgusting video games in order to disgust us -- but
disgust is not a valid basis for restricting expression....Thus,
ironically, Justice Alito's argument highlights the precise danger posed
by the California Act: that the ideas expressed by
speech -- whether it be violence, or gore, or racism -- and not its objective
effects, may be the real reason for governmental proscription."

Hear, hear to such a bold defense of the right of minors to consider a
full range of controversial thought, but if the claimed harmful effects
of minors' exposure to violence, gore and racism do not warrant a
governmental limitation on free speech, why isn't sexually prurient
material -- for adults if not minors -- deserving of equal First Amendment
protection? The unspoken answer that runs through Scalia's opinion, and
that of the court down though the ages, is that violence is normal while
sex is obscene.

Robert Scheer is editor in chief of the progressive Internet site Truthdig. He has built a reputation for strong social and political writing over his 30 years as a journalist. He conducted the famous Playboy magazine interview in which Jimmy (more...)